Irvine Has to Choose: the Bigger & More Visible Vets Cemetery Site, or the One That Punishes FivePoint More




The former Marine Corps Air Station El Toro is outlined in yellow. The state-approved site of the cemetery is in orange. The proposed new site of the cemetery, given a land swap, is in blue. The FBI site is in green. The 5 and 405 are both highlighted in pink. Their junction, the “El Toro Y,” is at the western tip of the site in blue — one that may finally earn the nickname “the Gateway to Irvine.”

(1) The Players in Tonight’s Veterans Cemetery Drama in Irvine

After a year of scant progress, Irvine’s City Council will today take up the questions of where (if at all) to build the planned Veterans Cemetery, when (with luck) to break ground, and how much (if any) to donate to the cause. The Council could hedge on the whole matter yet again, but which would be a very unpopular outcome — given that, thanks to some personnel changes, today may be the best chance yet to resolve the entire situation:

  • Don Wagner — who as an Assemblyman co-sponsored the original 2014 legislation enabling the Veterans Cemetery with then-and-once-again Assemblywomen Sharon Quirk-Silva — has replaced Stephen Choi on the Council as Mayor.  (Choi never seemed particularly warm to the project, in part because it wasn’t a library, and while he did grudgingly vote for it he was often seen as continuing to undermine it.)
  • Former City Councilwoman Beth Krom — who with Larry Agran was one of the two strongest advocates of the cemetery in 2014, and who joins Agran in holding a smoldering grudge at Emile Haddad’s “Five Point” for promoting the scuttling of the “Master Plan” for the Great Park, among other sins — has been replaced by Melissa Fox.  Fox was not part of the grudge-producing conflict of a quarter decade ago and has a good relationship with OCVMP, the veterans’ nonprofit Orange County Veterans Memorial Park Foundation, which has long been promoting an OC Veterans Cemetery.  (See disclosure at the end of this post.)  She is likely to go along with their wishes.
  • The attitude in the Capitol towards this project may be even better in 2017 than it was in 2014.  Not only is Quirk-Silva (who is popular with her colleagues) back in the Assembly, but widely celebrated veteran Josh Newman of Irvine is now Chair of the Senate Veterans Affairs Committee — and he feels strongly about getting the project completed.  He just needs to know what the final proposal for the project is.

The problem Irvine’s Council faces tonight, to the extent that you can call it that, is that there are two decent options.  I hate to dilute the rancor in this run-up to the meeting, but either of the two proposals offered by Wagner and Fox’s council colleagues, Jeff Lalloway and Christine Shea, has merit.  Unfortunately, they’re for different sites — and unless Wagner and Fox both side with one of them, the deciding vote will belong to Councilwoman Lynn Schott … who could conceivably vote against both.  The danger, from the viewpoint of veterans, is that the Council could once again kick the can down the road — while more veterans keep on dying every year.

(2) The Existing Plan and Some Speculation on Why Five Point Hates It So Much

Let’s start with the map up above.  The area outlined in yellow is, more or less, the boundary of the old Marine Corps Air Station [at] El Toro, from which tens of thousands of servicemembers both departed for and returned from Korea and Vietnam.  The veterans in OCVMP refer to this as “sacred ground” — the last North American soil that many who would die in Vietnam and elsewhere ever touched — and argue persuasively that no site could be more fitting for a new Veterans Cemetery.  And in 2014, with this OJB’s enthusiastic favor, a site within the Great Park (the portion of the MCASET owned by the City of Irvine) was selected.

Within those yellow bounds, you’ll see an area outlined in orange, labeled “ARDA,” which is the site that the Council approved (and the state legislature enacted) as the future home of the cemetery.  The problem with the site is that it is located in the midst of an area where Five Point — the successor to the Lennar Corporation, which had purchased the property from the Navy — was building luxury single-family homes, with marketing aimed at investors from the People’s Republic of China seeking a good place to park their money.  (This is widely seen as ironic, given that “Red China” as it was then commonly called had its own relationship with the U.S. military during the Vietnam War era — and it was not exactly a friendly one.)

Five Point had at least two problems (more likely, as noted below, at least three) with a cemetery being built on this property.  First, it wouldn’t be able to build the houses that it had planned to build on that site.  Second — and people from outside the Chinese community have disagreed about how sincere they think that this objection truly is — the proximity to a cemetery (even though it would not be visible from the nearby houses) was considered to be a major violation of the principles of feng shui, one that would render the land highly undesirable to Asians who strongly hold such traditional views, and reducing the value of the property.

It has been suggested (including by me in this blog) that that’s Five Point’s problem, not anyone else’s, and that they could still make substantial money by marketing the property to — oh, I don’t know — Vietnam era veterans?  I’m still not that sympathetic to Five Point on that score, but there is another problem they face for which I do have more sympathy: the existing property owners who already live there.

This problem has generally been discussed in terms of the interests of the homeowners themselves.  And there’s a strong argument to be made that — as (1) there was no promise made that no cemetery would be built nearby, and (2) this is a prestigious project that will serve an important community and the broader important community of the loved ones who will actually visit the cemetery, and (3) if they didn’t like it they could sell their property and find another great place to live in Orange County, probably at a profit — they really didn’t have a right to keep a veterans cemetery out due to their own professed religious beliefs.  (I say “professed” because if they really thought that it was bad feng shui to live within five miles of a cemetery, they might have looked at the site a little closer — and they would have found that there were already two smaller cemeteries within that distance. of their homes)  But the biggest problem may not have been for the homeowners, but for Five Point itself.

A cogent argument can be made that the responsibility for having foreseen that a plan for a veterans cemetery could have come out of virtually nowhere and land near a housing development was not that of the buyers — but of the seller.  Five Point had a legal duty to disclose to buyers foreseeable threats to the property (and its prospective values) — and while building a cemetery in the ARDA site was not foreseen, it arguably was not unforeseeable — especially given that Five Point itself had been the major advocates of scuttling Irvine’s “Master Plan” for the Great Park, which was the act that made installation of a veterans cemetery possible in the first place!

In other words, one can imagine Five Point facing a substantial risk of expensive penalties from extensive litigation if the veterans cemetery was built on the site.  (One can also imagine Five Point’s lawyers and officers turning green at the gills when they realized this exposure.  What are they going to argue — that their buyers’ feng shui-based beliefs were a load of crap?  Good luck with that strategy, home-builder!)

This matters because I and many others have viewed Five Point’s desire to stop the cemetery’s placement so that it could build yet another sub-development of luxury homes there as simply untrammeled greed for further profit.  And, frankly, this is not a very sympathetic motivation.  If they are instead motivated by abject terror — the prospect of unwinding or paying massive compensation for 1000 homes, rather than lost profit on 100 of them (those are just approximations), which of course they’d not likely admit openly now just in case they do end up in court — then at least it’s easy to see where they’re coming from.  And it’s easy to see why they might be able to spend a lot of money — more than they might like, but less than they might have at risk — to resolve the problem.

One resolution that was considered at the time was to move the site to one owned by the FBI and used as a weapons training site.  That site is the one outlined in green.  The FBI was asked about it then — Choi was a strong supporter of this idea — and they’ve been asked about it since, including recently.  The problem with this proposal is that they’re not willing to give it up.  (Some speculate that, if the OCVMP becomes the substantial and beloved tourist attraction that its proponents hope, the FBI might relent.  On the other hand, there are supposedly unexploded mines and stuff on the property, so it’s not obviously fantastic.)

Other sites, nearby and far, were also considered — although not, back in 2014, the one you see outlined in blue.  There’s sort of an odd story about that.  And that brings us to the proposals at hand.

(3) The Proposals: Stand Pat and Steamroll the Opposition, or Accept a Land Swap

One reason — Agran and Krom would probably say that it’s the reason, while others would strongly discount its role, but let’s avoid fighting over that today — that the Master Plan of the Great Park was implemented is that the State of California’s Redevelopment Funds earmarked for the project were eliminated.  The first thing that you need to know about today is that Irvine has gotten a fraction of them — $292 million — back.

Lalloway’s Proposal: Stay Put in ARDA and Spend a Little!

Jeff Lalloway — who provided the critical and not-entirely-expected third vote for the cemetery in 2014 (after which Choi’s and Shea’s votes switched to “Yes,” because there was no point in fighting) — has proposed that $40 million of this money go towards the expenses for remediation and such on the existing site.  (There are some poisons in a corner of that site that need to be cleaned up if a cemetery is to be built.  The Navy sold the land “as-is.”)  The City of Irvine would have some additional costs even for the federally owned cemetery site, but not that much — and less than the benefits that the site would likely confer.  So that’s good.

Other good things are that (1) the plan is already approved and would not require new legislation and (2) the state and federal governments are still substantially on board, although the federal government is providing only about a quarter of the money (as I recall) that had been expected.

The bad things about this proposal are:

  • If Five Point and the residents in the area truly are desperate to stop it — and, again, BIG FEAR is a greater motivator than Some Greed, if the “failure to warn” lawsuit scenario is true — then they may still be able to find a way.   There’s still a substantial amount of pathway to cover, and who knows what obstacles they could dream up.
  • Even if they don’t, it’s still a quality of life issue for the Chinese residents there, who truly didn’t expect to face anything like this.  Other things being equal — and they may not be! — not antagonizing them is better.
  • It will take a lot longer — possibly several years — to break ground on such a project.  And it may take longer to complete it.
  • The problem of land mitigation would continue to exist.

Shea’s Proposal: Switch to a New Site Donated by Five Point, Which Will Build It For Free!

Well after the cemetery was approved, Five Point came up with an alternative to it: they would donate land for Irvine to use as a Veterans Cemetery, and build that cemetery for the City, in exchange for being able to go back to their original plan for the ARDA site.  The site is the one you see at the bottom of the map, outlined in blue — with its western tip touching the junction of the 5 and 405 at the famous/infamous “El Toro Y.”

Oh — and they could break ground on this new site by Memorial Day.  It could be open for business in, if I understand correctly, as little as a year.  (I presume that that would be clarified tonight.)

So, uh, why wasn’t this site considered before?  Because it was not part of the Great Park, despite that — and mark this because there’s some wrong information circulating about it — it was absolutely part of MCAS El Toro.  This is the end — or the beginning, depending on which way the winds were blowing — of the runway.  Nothing has every been built there — it’s just an agricultural lot, planted for decades with strawberries — that was there in case of a crash or missed takeoff or a premature landing.  No poisons, just dirt and vegetation.  Presumably because it was a usable lot, it was not sold as a parcel with the rest of the land.  Five Point (and I’d presume previously Lennar) has just owned it by themselves — and apparently it didn’t occur to them until way too late in the game that it could solve their problem.

The upsides include: no worry about mitigation, no worry about bad interactions with the nearby Chinese residents, no bad feelings for those residents themselves, and the site would be extremely visible to the public rather than secluded from view.  Abutting the north side of the stem of the El Toro Y, a beautiful cemetery structure grounds, if designed and built well, would be a stunning “Gateway to Irvine” from the south and probably become the iconic image of the City for those who don’t have the great good fortune to spent time around its totally unlike any other city’s (relative) skyscrapers.  (And Lord knows that lots of people would be spending a lot of time in stopped traffic looking at it.)

The downsides are:

  • It supposedly might slow down the process of getting a completed cemetery — but that presumes that (1) the process is going to go smoothly without a swap, which is not a given, and (2) it can’t be made to go smoothly with new legislation.  I’m willing to say that this charge is unclear — but I think it’s more like doubtful.
  • It might require new legislation — but it might not.  And if it did, Josh Newman is really well positioned to get pretty much anything he wants, especially related to veterans, to and past the Governor’s desk.
  • It might not require new legislation because it would be built privately.  Much of the red tape in which the current project is embroiled comes from its being constructed by the government.  But, it could still be donated to the federal government — so long as it was built according to proper specs, with seems like a given — and would almost certainly be accepted.  The only reason that the federal government doesn’t built more veterans cemeteries, given the great need for them, is the cost and availability of land.  The notion that it wouldn’t unwrap the gift is almost inconceivable.  (And if it did reject the cemetery, then the state would very likely accept it as their gift.)
  • It doesn’t punish Five Point and Emile Haddad enough for messing up the plan for the Great Park.
    • I said “downsides” — I didn’t say reasonable downsides.  And this isn’t one.  But if you think that this isn’t a real motivation, I invite you to read this piece in the (rarely linked to) Liberal OC, where you’ll find complaints that this lot isn’t worth as much “acre-per-acre” as the ARDA site and so Five Point is taking advantage of the City.  And it attacks Cook for “embrac[ing] this unfair idea by FivePoints on a landswap that makes Haddad even richer.”
    • And there’s the crux: if your goal in all this is to punish Emile Haddad — who did help to get Don Wagner elected Mayor over Mary Ann Gaido, who would very likely have voted against the land swap — then of course you’re going to oppose the swap.  But to me, the objective is not to punish Haddad and Five Point, but to best serve the veterans themselves and the constituency that I have been representing in OCVMP — that of families of veterans who will want to visit their deceased within Orange County itself.  I’m not sure that Haddad is getting his greed satisfied here or just avoiding a calamity, but that’s not my concern: my concern is whether this flat, unsullied, visually prominent site — on land donated free and clear and built by a construction company at its expense — is a better vision for Irvine’s and Orange County’s future.  I think that it very likely is.
  • There’s one more objection: HEY, BUT THAT’S NOT PART OF THE GREAT PARK!  I’ll address that in a separate section.

(4) The Bounds of the Great Park are Whatever the Council Says They Are

The part of the emotional response I ascribe to Agran, Krom, Gaido, and others that I can empathize with is this:  if this site is located outside of the Great Park, then it further spits on the vision that had existed for that location.

Well, there’s an obvious solution here.

Does anyone doubt that had this parcel — which was part of MCAS El Toro, remember — been given to the City of Irvine along with the rest, that it WOULD HAVE BEEN part of the Great Park from the outset?  OF COURSE IT WOULD HAVE!  IT’S THE PART THAT YOU CAN SEE FROM THE FREEWAY!

Well then, Irvine can fix that problem retroactively: the current Council can retroactively incorporate this land officially into “The Great Park.”  Then it IS part of the Great Park.  It’s not part of the vision that Larry Agran had had, but it’s something that — without his excellent, inspired, and energetic work in 2014 — would not have happened at all.  And if the current Council doesn’t do this, a future Democratic-majority Council, and don’t bet against one, will do it for them anyway — so they might as well bow to the inevitable.

For some people, the notion that the swap might, paradoxically, turn out to provide some sort of vindication for Agran is probably noxious.  And I’ll say to them what I say to those who want to punish Emile Haddad: GET OVER IT.

The idea here is to transcend politics.  And a land swap that recognizes an undeniable truth — that without Larry Agran not only would there be no cemetery here, but that it would be an international airport — and shares the credit among all involved, THAT is the best tribute to veterans, to Irvine, and to Orange County.

And, frankly, if that $40 million can go into a fund from which the interest could pay for maintenance of the site — if the city ends up having to pay for it, which I doubt — then that would be so much the sweeter, and thanks for that will go to Jeff Lalloway.  So let’s see a land swap and the money to make it wonderful — all within the bounds of the Greater Great Park!


[Full Disclosure: I was heavily involved with OCVMP in 2014, the main year of the cemetery drama, and have continued to work with them (mostly with the group’s Treasurer, Brian Chuchua) since then as an unpaid occasional legal and political advisor.  Technically, my involvement started December 2013, when I had been discussing this with Chuchua and roped me into involvement with the new organization.  This was not long after the new Council majority, elected with the help of Five Point, scuttled the “Master Plan” for the Great Park — after which Agran and Krom were seething.  In mid-December, Quirk-Silva was appointed Chair of the Assembly Veterans Affairs Committee — and she and I were at a Christmas Party discussing what she might be able to accomplish in that position.  I spotted Agran and Krom across the room and wondered how they’d react to salvaging the planned importance of the Great Park, with the Master Plan in tatters, by putting a Veterans Cemetery in the Great Park.  I brought Sharon across the room to talk to Agran and Krom about that possibility and then walked away so as not to ruin the magic.  And, as I’ve said often before, from my personal observations in 2014, Quirk-Silva and Agran were both operating at the top of their game — and with OCVMP’s Chair Bill Cook were the three absolutely indispensable figures (with OCVMP’s Bob Brower being nearly so) who achieved what in late 2013 was literally  considered ludicrously impossible.  Others including Wagner, Lalloway, and Chuchua, also deserve enormous credit, as do the Governor and many state staff members, but anyone involved with the process would recognize that — whatever one’s view of them otherwise, Agran and Quirk-Silva’s work was extraordinary.  So, yes, I do feel a personal emotional stake in a good result here, even beyond my being the father of a service member who will be deployed this month to a dangerous part of the world.  That “bias,” if you want to call it that, is towards seeing a successful conclusion to the project, not to seeing anyone in particular get their way (or get thwarted.)]

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)